Are children just an "add-on" to a marriage?

The Edmonton Journal, 30 October 2021

The Supreme Court of Canada has held its long-awaited hearing on the government's same-sex marriage reference. Few imagine that it will deliver an opinion contrary to the government's own, particularly after the appointment of two new justices known to be supportive of the government's view, but early indications are that the court is unhappy with the reference process and would have preferred a straightforward appeal of lower court decisions, or else a decision to act on those decisions without further ado.

While its highest court is considering its response, however, the country should do the same. For whatever the court eventually says, and whatever the government proposes to do afterwards, Canadians themselves will ultimately have to choose between the two different views of marriage that have been put before the courts.

ORIENTED TOWARD CHILD-REARING

The first view is the traditional one. In this view marriage is the union between a man and a woman, a union oriented in principle to procreation and child-rearing. The opposite-sex requirement here belongs to the structure of the institution because it belongs to its core purposes.

The problem with this view, according to its critics, is that it violates the equality rights of homosexuals. Those who hold to the traditional view maintain otherwise, of course. Societies the world over, they say, have always understood marriage to be an institution aimed at the stable bonding of a father and a mother and their own offspring -- something regarded as basic to the welfare of children and essential for the stability of society itself. How can what is by nature an opposite-sex institution, with its own legitimate public purpose, violate equality rights simply by existing, especially when it is open to any man or woman who chooses it?

In the other view -- put forward recently by proponents of same-sex marriage, though it had a variety of early proponents from Friedrich Engels to Alfred Kinsey -- marriage is said to be a union of two sexually intimate persons, oriented simply to personal satisfaction, and is seen strictly as a partnership of adults and for adults.

The main charge levelled against this view is that it leaves out children; that it ignores what the UN calls the child's right to know and be cared for by its own natural parents. For here procreation is not a core purpose of marriage, and parenting (if it occurs) is detached, in principle if not always in practice, from actual procreative bonds. Children are "add-on" components, so to speak, that may be obtained by various technological or legal means, if desired. Various things have been said in reply to the charge that this demeans and endangers children, and robs them of the aforementioned right, but it is fair to remark that a consistent response has yet to be worked out by proponents of the new view.

The focus of the debate in the courts thus far -- to our shame, I think -- has been exclusively on the rights of adults. On that score, both its proponents and its opponents agree that, if the new view of marriage is to prevail, any opposite-sex stipulation would set up an arbitrary form of discrimination that the courts must overrule as an unreasonable restriction on the freedom of homosexuals. Many on both sides are beginning to argue as well that the stipulation "two" is equally arbitrary and will have to be removed in due course.

What is not agreed is that the old view of marriage discriminates unlawfully. Traditionalists argue that on their own model the opposite-sex requirement is anything but arbitrary. Its purpose is to bind parents and children together within the nexus of their natural bonds, and this is a public good that fully justifies not only the existence of the traditional institution but its continued recognition by the state.

SOCIETY MUST DECIDE

Canada's provincial courts have not adequately wrestled with this issue. Nor have they ruled that Canadian society may decide in favour of the new definition of marriage if it sees fit (whatever the consequences for children or children's rights). No! They have ruled, in effect, that society must decide in favour of the new definition in order to eliminate unlawful discrimination against homosexuals.

I would like to believe that our highest court will see through this fallacy. For the unlawful discrimination thus eliminated is a discrimination that does not actually exist so long as the traditional definition is still in place. It could only come into existence if, having adopted the new definition of its own free will, society were then to insist that even as a strictly adult-centred institution marriage is only for heterosexual couples.

Whether or not the Supreme Court of Canada grasps this point -- whether or not it chooses to speak directly to the reference questions at all -- it will fall to Parliament to wrestle with these things in its own way. The country cannot waver much longer between two opinions. It is imperative, then, that all Canadians think hard about them while we await the court's own answer.

Douglas Farrow is co-editor of Divorcing Marriage: Unveiling the Dangers in Canada's New Social Experiment (McGill-Queen's University Press 2004) and associate professor of Christian thought at McGill University.

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